For The Record, I Also Do Not Believe In Unicorns

But the proposition that our rights are a gift from God is neither un-conservative nor un-Christian; it is a commonplace observation in the context of American political history. ~Ramesh Ponnuru

Ponnuru’s first sentence is more debatable, since it depends very much upon what one means by conservatism and what one thinks Christianity teaches. Of course, one actually looks high and low in vain in the Fathers for talk of anything resembling rights, which is a notion very closely attached to an entirely different conception of human nature and human society. It is fair to say that the mythology of Whigs and liberals is antithetical to Christian revelation, and it teaches radically different things about human nature. Christian orthodoxy holds that man was created without sin, but has since entered into corruption and his genuine freedom has since been limited and reduced. In this sense, possessing our rightful, natural freedom is possible only for those who have been fully sanctified. In the fallen world, liberty is not to be had without Christ, and the liberty in question has little, if anything, to do with the state or society as a whole.

Only a very particular sort of conservatism accepts the Whig mythology not simply as part of a cultural tradition and therefore in some sense unavoidably “ours” and worthy of some respect. This particular kind of conservatism would instead see the mythology as an actually true statement about the origin of government, the nature of man and the existence of rights. The other sort of conservative–the one who is willing to show respect to the liberal tradition as one would show to elders, even if they are doddering and confused–has the more tenable position as a conservative. The one who endorses Whig mythology has plenty of company in American history, but he is really just the latest version of a Whig. For some people, that is quite all right and even a compliment. I would stress, however, that it is not really part of conservatism to endorse this mythology. Even some American conservatives who might have well preferred the label “Old Whig” did not actually embrace these fanciful stories as if they were true. Many who bear the name of conservative may not want to go so far as to repudiate all these myths, but there is certainly a good case to be made that they have nothing to do with conservatism or orthodox Christianity.

Ponnuru is correct about the last point–you can certainly find statements declaring fundamental rights to be from God scattered throughout American history. This is a claim with a short but notable pedigree in Anglo-American thought. Whig theorists regularly stated that rights came from God, just as they described popular sovereignty as His bestowal of His own sovereignty on the people. Certain Presbyterian Covenanters saw natural parallels between their conception of proper church government and the appropriate ordering of the state. Natural rights theorists often traced the origin of rights back to the Creator. They also seem to have been most abundant in the wake of acts of treason and rebellion, since they were compelled to find some justification besides the legal (which they knew they didn’t have) for what they or their confreres had done. There are some obvious objections: what rights that do exist arise from a constitutional and legal evolution that can actually be traced and explained, and they neither pre-exist human society nor do they inhere in all people, because there is no such thing as inherent rights. You can be quite devoted to the legacy of 1688, for instance, and the constitutional inheritance it represents and still not believe any of this talk about rights and God. When we talk about rights, in practice we mean legal and constitutional rights, rights that we possess as citizens and heirs of a particular constitutional tradition. This makes the rights we have rather difficult to universalise and introduce to every corner of the globe, since they require an entire history and constitutional edifice that many peoples have lacked.

Mythical rights whose origin is supposedly divine are far more flexible–they can be said to exist when there is no evidence for them, and their very intangibility and invisibility might seem to confirm their divine source. They can be discerned in everyone, because they are actually just figments of fecund imaginations. They can be declared “natural,” yet they are often entirely out of the ordinary in the present state of human existence. While I understand the desire to link mythical “rights” to something transcendent and eternal, and thus have the ability to say that they are not subject to the accidents of history, I have to say that I don’t find it very convincing.

Ponnuru concludes:

Most of the time, however, when people say that our rights come from God what they are most concerned about affirming is that those rights are not created by human beings. That, it seems to me, is true, or else there are no human rights at all.

I understand this position quite well, since at one time I accepted it. Of course, rights, taken as existing things that each person possesses inherently by nature, had to come from God, or else they do not really exist! If human rights come from human nature, they must ultimately come from the Creator of that nature. All of this hinges on the first part of that conditional, and should there not actually be any such things it is idle to debate where they come from.

Without a divine origin, they would just be the product of this or that legal arrangement–which is, of course, exactly what they are. This is a problem for those who are of the opinion that a thing constructed or arranged by men is not worthy of respect or admiration. (Of course, it is entirely reasonable to say that those who conceived of and preserved constitutional liberties derived at least part of their understanding of justice and human dignity from the revealed religion in which they were raised, but that is to put such rights at a remove from any divine origin and make them frighteningly contingent on…people!) Acknowledging this does not make a person less concerned to shore up those legal protections, nor does it mean that he is more inclined to run roughshod over constitutional liberties. On the contrary, recognising the contingency, historical evolution and fragility of constitutional and legal rights seems crucial to defending them against those who, convinced that rights exist as elements of our natures, seem less disturbed by trampling on actual rights in the here and now (always in the name of defending liberty, of course, and bringing its fruits to other lands). If enough bad, anti-constitutional, liberty-killing precedents are established, liberty will not regenerate and spring forth anew because God has willed it so–liberty can be crushed or voted away.

In a way, I still accept the logic of the view outlined by Ponnuru, but I no longer think that rights as some sort of essential aspect of human nature exist. If they existed, finding their origin in God might make some sense, but then I suppose I would also acknowledge that God was responsible for creating unicorns–if there were any unicorns.

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3 Responses to For The Record, I Also Do Not Believe In Unicorns

“Rights” really are just the gift of the sovereign, or of whoever exercises the sovereign power. In Britain, historically speaking, rights are/were whatever the nobles could squeeze out of the King, and then whatever the nobles felt like allowing for the rest.

Today, we have the Crown and the “People” of the individual states as the sovereigns of Great Britain and the United States respectively, but this seems to be a simple legal fiction. In reality, it is the governmental establishment (politicians, bureaucrats, etc) who exercise sovereign authority.

When they decide the people no longer have a right, the people no longer have that right, as attested to by the Supreme Court’s nullification of private property in the Kelo v. New London decision, or in the Labour government’s perennial push to make jury trials more rare and detention without charge easier. All “human rights” or such are just the happy whims of our overlords; what they decide to allow us, and which is truly within their gift.

I have long suspected that the only actual human right is the right to do what is necessary to obtain the salvation of the soul.

Even if all rights are positive law rights, then they are still “real.” Therfore, if you are committed to the proposition that everything real (and good) comes from God, they come from God.

I’m not sure whether you are saying that all law is positive law, or just that natural law should not be conceived of in terms of “rights.” “Thou shalt not steal” is logically equivalent to “Property owners have a right to secure possession” and “Thou shalt do no murder” is logically equivalent to “People have a right to life.” If the duties are natural law, then the correlative rights are natural rights.

The really troublesome move is when liberals say that all natural duties have to be correlative to rights. At that point, suicide or dissolute living become seen as morally unproblematic.

I don’t think Mr. Cusack correctly states the medieval understanding of the English legal order, as exemplefied by Bracton. Customary and natural rights of subjects and of tenants were considered binding on kings and lords respectively. It was not a matter of what they “felt like” allowing. Certainly, there was no question that rights were unequally distributed. There were also limits on the temporal remedies available if an overlord abused the rights of those beneath him. But everyone, including the king, was subject to the law and could be punished in this world (by insurrection in extreme circumstances) and in the next.